Wednesday, July 02, 2008

SSgt Wuterich petitions CAAF

We previously discussed NMCCA's ruling reversing a military judge's quashing of a subpoena issued to CBS News in United States v. Wuterich, a prosecution arising from the Haditha incident. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). On Monday, SSgt Wuterich's counsel filed a petition at CAAF. United States v. Wuterich, __ M.J. ___, No. 08-0681/MC (C.A.A.F. June 30, 2008). This has the effect of cutting off NMCCA's ability to sua sponte reconsider Wuterich either in panel or en banc.

On Tuesday, CAAF redocketed Wuterich, noting that it is a petition seeking review of an Article 62 appeal. CAAF renumbered the case 08-6006/MC and, under Rule 21(b), ordered that the supplement be filed no later than 21 July 2008 and the government's answer be filed no more than 10 days after the supp is filed. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 1, 2008).
Posted by Dwight Sullivan at 8:47 PM

5 comments:

Anonymous said...

Ahhh...the dust settles on Lopez de Victoria. CAAF, I have no sympathy for you and your piecemeal litigation (isn't that disfavored?). Many said it wouldn't congest CAAF's selective docket...Dossey and Wuterich in a matter of weeks.

Wed Jul 02, 09:31:00 PM EDT
Dwight Sullivan said...

While I thought the Lopez de Victoria dissent was more persuasive than the majority, concern about overwhelming CAAF's docket shouldn't be an issue. Either Congress did provide CAAF with jurisdiction or it didn't. If it did (as CAAF determined), then CAAF can choose whether to review an individual petition from an Article 62 appeal. CAAF hardly could have reasoned that Congress intended to give it jurisdiction to review Article 62 appeals but it would decline to do so because it's too much work.

Nor is there any reason to fear that CAAF will be overwhelmed. Since 1983, CAAF has been exercising jurisdiction over Article 62 appeals. So Lopez de Victoria didn't expand CAAF's jurisdiction as applied; rather, it continued it. If CAAF wasn't overwhelmed by Article 62 appeals before Lopez de Victoria, there's no reason to assume it will be now.

Finally, CAAF will likely issue 65 opinions of the court this year. As we have previously mentioned, that's about 1.18 opinions of the court per judge per month. The court has significant excess capacity. CAAF could review every CCA ruling on every Article 62 and not be overwhelmed.

Wed Jul 02, 09:40:00 PM EDT
Anonymous said...

Oops, forgot, McGinnis which makes 3 from Navy alone in the matter of about 6 weeks.

Wed Jul 02, 09:43:00 PM EDT
Dwight Sullivan said...

Four of the 62 opinions of the court thus far this term are from Article 62 appeals (Lopez de Victoria, Michael, Miller, and Webb). This provides still greater support for the proposition that Lopez de Victoria won't lead CAAF to be overwhelmed; when the term ends, only 61 of CAAF's 65 opinions will be from non-Article 62 cases.

Wed Jul 02, 09:54:00 PM EDT
Cloudesley Shovell said...

A consequence of CAAF reviewing Art. 62 appeals is further delay of trial. This is especially true when the petition is filed during the summer break. Trial can be delayed for well over a year.

I repeat my call for some statutory remedies to these gray-area jurisdictional issues. This of course begs the question: If a dead British admiral advocates for something in the comments section of a blog, does Congress (or the Code Committee) hear anything?

This delay is rather troubling in light of Art. 62's clear mandate that such cases be handled expeditiously. The gov't gets only 72 hours to give notice of appeal, and the CCA's are required to put Art. 62 appeals on the front burner ("whenever practicable"). Having a case sit around from May or June to October doesn't quite fit in with the whole idea of expedited handling.

Wed Jul 02, 11:34:00 PM EDT

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